Want To Get A Sense Of Just How Complex And Confusing Copyright Law Really Is?

from the then-check-this-out... dept

Michael Scott points us to an article concerning the Library of Congress issuing a report on how copyright law applies to libraries who possess unpublished audio works recorded prior to 1972. The problem, you see, is that no one was exactly sure whether or not these recordings were actually covered by copyright law. The real problem, though, becomes pretty clear pretty quickly as you read through the article: copyright law is a house of cards. We just keep layering new rules on top of old rules, and figure the courts will sort out the places where they contradict, overlap or confuse. But that leaves a ton of uncertainty in a variety of situations -- including this particular one. It should be a simple question: if a library is in possession of an unpublished sound recording from before 1972, what's the copyright status? But the mess that is copyright law makes it such that it's hardly an easy question at all -- and actually requires an 85-page report from the Library of Congress to go through all of the nuances. And then your everday individual is expected to understand what is "right" and "wrong" in copyright law?

You've got it backwards

Actually, you have it exactly backwards: Copyright law *used* to be a complete mess. That's why Congress passed the new Copyright Act that went into effect on Jan. 1, 1978. The problem is that lots of crazy, bizarro rights from the previous Act still applied, since lots of works were already governed by those rules, and it would have been a violation of the Fifth Amendment (the Takings Clause) to change the ownership rights.

For example, the question of an "unpublished work" was jettisoned by the new Copyright Act, and no works created after 1977 ever have to answer the quesiton about whether they've been legally/officially "published" or not. So the new laws that you complain about have actually been simplifying copyright, not complicating it.

Except for one area: Fair Use. The Fair Use principle was finally codified by the new Copyright Act, and it's such a complex multi-part mess that nobody who's not a lawyer really understands it. (And even then.) Ironically, of course, that's the area of law that anti-copyright advocates don't have any objection to.

Re: You've got it backwards

Whether copyright law prior to 1978 was a mess is irrelevant; by retroactively extending preexisting copyrights with "crazy, bizarro rights" attached, Congress, rather than clarifying copyright law with the Copyright Act, muddled the mess further and dragged it across the next several decades.

If Congress had chosen to not make the Copyright Act's extensions retroactive, all these works would've already fallen into the public domain, as their contract with the public at the time of their creation dictated, and this 85-page report could be replaced by a single line.

"Actually, you have it exactly backwards: Copyright law *used* to be a complete mess. That's why Congress passed the new Copyright Act that went into effect on Jan. 1, 1978. The problem is that lots of crazy, bizarro rights from the previous Act still applied..."

In other words: Copyright law is a complete mess. Thank you for clearing this up.

"The Fair Use principle was finally codified by the new Copyright Act, and it's such a complex multi-part mess that nobody who's not a lawyer really understands it."

Which is why exactly 100% of all lawyers agree completely when they interpret copyright law.

Wait just a minute... Are you a lawyer? If not, you certainly could be one!

Re: Youve got it backwards

#3/#4--

Congress wasn't allowed to make the new terms retroactive; it would have been unconstitutional. As mentioned, the "Takings" clause of the Fifth Amendment doesn't allow the government to arbitrarily remove your existing property rights.

#2--

You've still got it exactly backwards. The writer wants us to believe that the new copyright laws are what have mucked things up; when in fact it's the other way around. (Except, of course, for Fair Use, which is an unholy mess.)

In fact, even the latest major revision to copyright law, the Digital Millennium Copyright Act, simplified things greatly, giving protection to service providers and web sites for the unmoderated copyright violations of its users--something else anti-copyright activists didn't have any objection to.

Re: Re: Youve got it backwards

ASH: He's not suggesting Congress should have made the new rules retroactive. He's saying they should not have extended the length of copyright protection for existing works.

Second, the point is not that "the new rules messed things up" or "wish we could could back to the good old days". The point is, "the rules are really really messed up." And that would be hard to disagree with.

Third, I think your claim that the DMCA simplified things greatly is highly questionable at best. The safe harbor rules are a good thing, but they don't necessarily simplify anything. And the rest of it... I don't see how it could be viewed at all as a simplification.

Nasch--actually, he's not talking about "the length of copyright protection for existing works" at all--that doesn't figure at all into this question in any way.

This is about whether the work was "published", which used to be a requirement under the old copyright law. The new copyright law has done away with that completely.

In addition, it used to be that if a law didn't have federal copyright protection (say, because it was "unpublished") then every state could individually have its own different copyright system ("common law copyright") to protect those works (meaning there were 51 different sets of copyright rules). The new copyright law did away with that unholy mess of a system as well.

So, yeah, the new copyright laws really did simplify things. And yes, he IS in fact saying that "the new rules messed things up"--that's why he says "We just keep layering new rules on top of old rules."

About the DMCA: You may feel that it didn't simplify things. But if you were a service provider, message board host, or website owner with user-generated content, it sure as hell made your life a whole lot simpler.